Saturday, 7 April 2012

Consequential Damages awarded to Terminated Journeyman Apprentice

The British Columbia upheld an award of $25,000 in “consequential
damages” where an employer wrongfully terminated a journeyman apprentice
who was thereafter unable to find another apprenticeship position.

At the trial of the action (Marchen v. Dams Ford Lincoln Sales Ltd.,
2009 BCSC 400) Mr. Justice Goepel’s reasoning for awarding such damages
was based on the accepted British exception to the ‘general rule of
wrongful termination damages’, by holding that in cases of
apprenticeship contracts consequential damages may be awarded. Mr.
Justice Goepel held that apprenticeship contracts, by their very nature,
contemplated consequential damages if they were wrongfully terminated.

The special circumstances under which this contract
was made were known to the appellant. It was in the reasonable
contemplation of the parties that Mr. Marchen’s loss of the opportunity
to earn a journeyman’s wage and a loss of the status of journeyman would
result from the appellant’s breach of contract; the loss of the
education and steps to qualification he would have enjoyed had he been
employed to the time work became unavailable made it more difficult to
complete the apprenticeship successfully. On the facts as found by the
trial judge, Mr. Marchen was not able to secure a further apprenticeship
that would have allowed him to become a journeyman. On the evidence,
it is likely downsizing did not occur until late autumn 2005, which
would have entitled Mr. Marchen to at least 10 months additional
employment and training as an apprentice.

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In my view, Justice Chiasson’s reasoning is simply a re-articulation of the exception.

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The take away is that contracts for apprenticeship positions are
different from general employment contracts, and damages in addition to
damages for failure to give notice may be awarded.

As always, everyone’s
situation is different. The above is not intended to be legal advice for
any particular situation and it is always prudent to seek professional legal
advice before taking any decisions on one’s own case.

Sean Bawden is an
Ottawa, Ontario employment lawyer and wrongful dismissal lawyer. He tweets
from @SeanBawden.